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SHILLONG BENCH WP(C) No. (SH) 13 of 2010

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SHILLONG BENCH WP(C) No. (SH) 13 of 2010 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunchal Pradesh) SHILLONG BENCH W.P.(C) No. (SH) 13 of 2010. No. JC 93816N, Subedar/GD Shri Chatur Singh Thapa Son of Late DS Thapa Resident of HQ 9th Assam Rifles C/o 99 APO Presently residing at Assam Rifles Bazar, Happy Valley, Shillong East Khasi Hills District Meghalaya. : Petitioner -Vs- 1. The Union of India represented by the Secretary, Ministry of Home Affairs, Govt. of India, New Delhi. 2. The Directorate General of Assam Rifles, Laitkor, Shillong, Meghalaya-793010 3. The Brigadier (Pers) HQ : Directorate General Assam Rifles, Laitkor, Shillong, Meghalaya 4. The Section Officer (Adm & Docu) Record Branch, HQ : Directorate General Assam Rifles, Laitkor, Shillong, Meghalaya-10 5. No. 93996 Sub/GD Mohan Singh Pharswan HQ: 9th Assam Rifles C/o 99 APO : Respondents BEFORE THE HON’BLE MR JUSTICE T VAIPHEI For the Petitioner :Mr R Jha, Mr K Kharmawphlang Mr G Marak, Ms P Dhar, Advocates For the Respondents :Mr SC Shyam, CGC Date of hearing : 14.12.2010 Date of Judgment : 4.2.2011 2 JUDGMENT AND ORDER In this writ petition, the petitioner is aggrieved by his non- promotion to the rank of Subedar Major/GD in Assam Rifles and of his supersession by the respondent No. 5, who is junior to him. The factual matrix is not really in dispute. He was initially enrolled as a recruit in the Assam Rifles on 7-2-1973, was promoted to the rank of Lance Naik (GD) on 24-2-1979 and was further promoted to the rank of Naik/GD on 1-12-1980. He was again promoted to the rank of Havildar/GD on 21-10-1983, was then promoted to Naib Subedar (GD) on 1-11-1989 and was further promoted to the rank of Subedar (GD) on 1-10-1996. On 31-10-2009, the vacancy for the post of Subedar Major arose following the retirement on superannuation of Subedar Major, Shri K.M. Gurung. As a senior-most Subedar, he was allowed to officiate in the post of Subedar Major with effect from 1-11-2009. In the meantime, the process for promoting him to the post of Subedar Major got started: he was strongly recommended by his Commandant by forwarding his case along with the relevant documents to the Directorate-General of Assam Rifles (respondent 2). He was also strongly recommended by all formation Headquarters i.e. Commander Headquarters, 7th Sector, Assam Rifles, Inspector General of Headquarters and Inspector General of Assam Rifles. However, much to his consternation, the respondent No. 5, who is junior to him, was promoted to the post of Subedar Major with effect from 1-11-2009 vide the impugned order. On coming to know of this development on 5-2-2009, he promptly on 8-2-2010 submitted his representation to the respondent No. 2 through proper channel. He is admittedly not only the senior-most in his battalion but 3 also in the entire Assam Rifles. This is how this writ petition came to be filed by him. 2. As the petitioner has been admittedly superseded his junior, it is necessary to find out the justification of the respondent authorities by referring to the affidavit-in-opposition filed by them, who have contested the writ petition. At the outset, they point out that a candidate for promotion to the rank of Subedar Major (General Duty) is required to meet the eligibility criteria laid down in Appendix ‘B’ to the Assam Rifles Record Officer Instructions No. 4/2002 issued by the Directorate General of Assam Rifles. According to them, though the petitioner meets most of the criteria laid down therein, he did not fulfill criteria © of Clause 4, which stipulates that out of the last five Annual Confidential Reports, the two reports must be from Bn/ARTC&S/NSG. It is also the case of the answering respondents that one of the essential qualifications for promotion to the rank of Subedar Major is passing Army Certificate of Education-One or matriculation examination from a recognized Board of School Education. According to the answering respondents, in the year 1989, the petitioner produced a Certificate of High School Leaving Certificate Examination along with the mark sheet from the Central Board of Higher Education, Uttam Nagar, New Delhi- 110059, which, on verification from the Central Board of Secondary Education vide their letter dated 10-2-2006, was found to be issued by a fake Board. The petitioner was obviously procuring a fake matriculation certificate to secure promotion, for which a case of forgery initiated against him is pending and being finalized soon. The petitioner again produced another matriculation certificate from National Institute of Open Schooling issued in the year 1989, which is yet to be verified. It 4 is contended by the answering respondents that the recommendation of the Departmental Promotion Committee are merely advisory in nature and not binding upon the appointing authority: the Director General of Assam Rifles, who is the appointing authority, is not the rubber stamp of the Departmental Promotion Committee. The appointing authority, after due scrutiny of the DPC proceedings with reference to the educational qualifications, ACRs criteria, medical and discipline criteria in accordance with the standing instructions at Annexure-R/1, found the petitioner unfit for promotion to the rank of Subedar Major (General Duty). On the contrary, the respondent No. 5 fulfilled all the criteria and was accordingly promoted to that post from the date of vacancy i.e. on 1-11-2009. Thus, no interference is called for in the impugned promotion order, which is in order and does not suffer from the vice of illegality, procedural impropriety or irrationality. 3. On reading the pleadings of the parties and after hearing Mr. R. Jha, the learned counsel for the petitioner, and Mr, S.C. Shyam, the learned CGC appearing for the respondent authorities, it becomes apparent that the principal question for determination in this writ petition is whether the petitioner is eligible for promotion to the rank of Subedar Major. It is the contention of the learned counsel for the petitioner that the denial of promotion to the petitioner, who is undoubtedly the senior most Subedar not only in the battalion but also in the seniority list of all Subedars in the Assam Rifles itself, is arbitrary and illegal. He also submits that the petitioner is an employee of Central Para-Military Force under the Ministry of Home Affairs, and is accordingly governed by the Central Civil Service Rules read with Instructions for Compilation of Confidential Reports-JCOs in so far as 5 conditions of service is concerned and is not in any way regulated by the Army or Defense Regulations and cannot, therefore, be denied the promotion by importing the service jurisprudence of military service. According to the learned counsel, as the petitioner was found by a regularly constituted DPC to be fit for promotion to the rank of Subedar Major, the appointing authority, in the absence of any infirmity in the proceedings of the DPC, was duty bound to promote him: no material infirmity could be pointed out by the respondent No. 2 to ignore the recommendation of the DPC and appoint the respondent No. 5, who is admittedly junior to the petitioner. He, therefore, contends that the impugned promotion of respondent 5 be quashed and the petitioner be promoted in his place with effect from the date the respondent No. 5 was promoted with all consequential benefits. On the other hand, Mrs. S.C. Shyam, the learned CGC, supports the impugned order of promotion and contends that the petitioner was rightly denied the promotion as he did not fulfill the criteria for promotion, namely, he, not being GD personnel forming part of any AR team of any discipline attached to AR/Army formation, did not have two of his five ACRs from Bn/ARTC & S/NSG nor did he pass matriculation examination or obtain Certificate of Army Education. In any case, according to the learned CGC, the defense services have their own peculiarities and special requirements, and the considerations which apply to other government servants in the matter of promotion cannot as a matter of course be applied to para-military personnel of the petitioner’s category and rank. He strongly relies on the decision of the apex court in Dev Dutt v. Union of India, (2008) 8 SCC 725 to buttress his contention. Contending that the writ petition is bereft of merits, he vehemently urges this Court to dismiss the writ petition with costs. 6 4. As observed by the Apex Court in Tata Cellular v. Union of India, (1994) 6 SCC 651, the power of judicial review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court’s ability to quash an administrative decision on merits. These restraints bear the hallmarks of judicial control over administrative action. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision- making process itself. It is thus different from an appeal. When hearing an appeal, the Court is concerned with the merits of the decision under appeal. Since the power of judicial review is not an appeal from the decision, the Court cannot substitute its own decision. Apart from the fact that the court is hardly equipped to do so, it would not be desirable either.
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